By: Timothy L. Miles | Toxic Baby Formula Lawyer
The allegations in the toxic baby formula lawsuits are that the manufacturers of these products failed to warn parents of the associated health risks of the bad formula, which caused unsuspecting parents to give it to their prematurely born children. A claim brought for a failure to warn is a products liability claim that does not allege that the product has physical flaws or defects, but rather alleges that the manufacturer failed to provide adequate warnings or instructions about the safe use of their product, and as a result they were injured due to the undisclosed risk. Thus, families and their toxic baby formula lawyer will argue the manufacturers did not provide adequate warnings on the toxic baby formula that caused their child to develop NEC. If successful, families can receive damages in the form of economic and non-economic losses. These losses usually range from their medical costs and lost income to their pain and suffering and lost enjoyment of life. Of course, this assumes a toxic baby formula lawyer determines none of the available defenses to a claim for failure to warn are available to a manufacturer.
Defenses to Failure to Warn Claims
The Risk Was Obvious
One of the more common defenses to a claim for failure to warn is that the risk was obvious to the plaintiff. In the vast majority of jurisdictions, an obvious risk does not require a warning. For example, a box of matches would likely need a warning they may start a fire, since the plaintiff, or any other ordinary person, buying a box of matches should expect this. However, if an ordinary prudent person would not be able to recognize the risk by using their common sense, a manufacturer most likely would not be able to use this defense.
The Misuse Was Not Foreseeable
Another defense to a failure to warn claim is that the plaintiff did not use the product in a reasonably foreseeable way. If a consumer used a product in a completely unpredictable way, such as using a weed eater to trim your hair, the manufacturer will not be liable for failing to warn about a risk that it could not have reasonably foreseen. On the other hand, consumers are not required to use products in the precise way that was intended by the manufacturer. Therefore, a lack of warnings related to a predictable misuse still may expose a manufacturer to liability, if the risk related to that misuse was not obvious.
Manufacturer Knowledge and Liability
A manufacturer cannot just claim it had no knowledge of the risk it failed to warn about. In a failure to warn claim, actual knowledge is not required. Instead, if the manufacturer reasonably should have known about the risk, it may be held liable for the resulting injuries. The determination of whether knowledge should be imputed to a manufacturer typically requires the consideration of the steps that a reasonable manufacturer would have taken in developing and testing its product. If these steps by a reasonable manufacturer likely would have revealed the risk, then a lack of actual knowledge caused by failing to take these steps will not be an available defense to the defendant.
Timothy L. Miles
Tim Miles Law Office | Toxic Baby Formula Lawyer